[ v19 p725 ]
The decision of the Authority follows:
19 FLRA No. 87 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547 Union and TAMPA VETERANS ADMINISTRATION HOSPITAL Activity Case No. O-AR-916 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Lawrence Kanzer filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. The grievance in this case concerned the grievant's failure to receive a cash award for superior performance. According to the Arbitrator, the grievant in 1984 received an overall performance appraisal rating of "outstanding," the highest rating. On the basis of this rating, the grievant was recommended for and received a performance award certificate. He was not recommended for and did not receive a cash award and as a result filed a grievance that was ultimately submitted to arbitration. The Arbitrator framed the issue as follows: Did the (Activity) violate Article 32, Section 6 of the Master Agreement by failing to automatically consider the grievant for a monetary award under the provisions of the incentive awards program intended for employees rated by their supervisors as outstanding or superior? In this respect the Arbitrator specifically noted the issue as framed by the parties. The Union framed the issue as whether management considered the grievant for a monetary award fairly and equitably and whether management changed procedures on performance awards without the knowledge of the Union or the grievant. The Activity framed the issue as whether the grievant was considered for a monetary award in accordance with Article 32, Section 6B of the agreement. Quoting Article 32, Section 6C of the parties' master agreement providing that "(a)wards for performance will be distributed in a fair and equitable manner," the Arbitrator ruled that the Activity's "decision not to give Grievant a monetary award was both unfair and inequitable." Accordingly, as his award, the Arbitrator directed that the Activity issue the necessary form awarding the grievant a monetary award not to exceed 3% of his salary, that the Hospital Director review such award and enter his concurrence or modification of the award as to amount only, and that the grievant be paid the amount of such award. As one of its exceptions, the Agency contends that the award does not draw its essence from the collective bargaining agreement. In support of this exception, the Agency notes that Article 13, Section 2 of the parties' collective bargaining agreement pertinently provides: Section 2-- A grievance means any complaint: A. By an employee(s) or the Union concerning any matter relating to employment; or B. By an employee, the Union or management concerning the interpretation or application of this Agreement and any supplements or any claimed violation, misinterpretation or misapplication of law, rule or regulation affecting conditions of employment. Except that it shall not include a grievance concerning; . . . . 6. Decisions on Incentive Awards. Thus, the Agency argues that by examining the decision not to grant the grievant an incentive award, in addition to the issue of the consideration of the grievant, and by directing a decision granting the grievant an incentive award, the award is plainly inconsistent with the agreement and is therefore deficient as failing to draw its essence from that agreement. Under section 7122(a)(2) of the Statute, the Authority will find an award deficient when it is established that the award does not draw its essence from the collective bargaining agreement. United States Army Missile Materiel Readiness Command (USAMIRCOM) and American Federation of Government Employees, Local 1858, AFL-CIO, 2 FLRA 432 (1980). Specifically, in Overseas Education Association and Office of Dependents Schools, Department of Defense, 4 FLRA 98 (1980), the Authority found a portion of the arbitrator's award deficient as failing to draw its essence from the collective bargaining agreement when it was established that this portion of the award evidenced a manifest disregard of the agreement. In terms of this case, the Authority finds that the award evidences a manifest disregard of the parties' collective bargaining agreement. As noted, the Arbitrator and the parties all framed the issue involved in the grievance as concerning the consideration, or lack of it, provided the grievant with respect to a monetary performance award. By expanding that issue to directly concern the decision not to grant the grievant an incentive award, despite the Activity's contention that decisions on incentive awards are excluded from the coverage of the negotiated grievance procedure under Article 13, Section 2 of the parties' collective bargaining agreement, and by directing a decision to grant the grievant an incentive award, the Arbitrator clearly subjected to grievance and arbitration a "(d)ecisio(n) on (an) Incentive Awar(d)" in manifest disregard of the parties' collective bargaining agreement which expressly excludes such a matter from coverage by the negotiated grievance procedure. Consequently, the award is deficient as failing to draw its essence from the collective bargaining agreement and must be modified. In this respect, the Agency in its exception in effect concedes in view of the award as it pertains to the consideration of the grievant that it would be appropriate for the Activity to be ordered to properly consider the grievant for a monetary performance award. With the Arbitrator having found that grievant was not properly considered for a monetary performance award, the Authority agrees with the Agency that the award should be modified to provide an appropriate remedy. Accordingly, the award is modified to substitute the following in place of the Arbitrator's award; /1/ The Activity is directed to reconsider the grievant for a monetary performance award for his 1983-84 appraisal period. Such reconsideration shall be in accordance with applicable law, regulation, and the parties' collective bargaining agreement. Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Contrary to the argument of the Union in its opposition that this exception should not be sustained because the grievability issue should have been raised at step 3 of the grievance procedure, the Authority finds that at step 3 of the grievance procedure the grievance was framed in terms of consideration of the grievant and unilateral change of incentive award procedures and not a direct challenge of the decision on the incentive award. Thus, the Activity properly raised the grievability issue before the Arbitrator and its exception properly provides a basis on which to find the award deficient. In addition, in view of this decision, it is unnecessary to address the Agency's other exceptions to the award.